Posts Tagged ‘retirement’

When a laborer with limited English is disabled from physical work, is he obligated to increase his employability by learning English? This interesting question emerged in the case of Enrique Gutierrez, a 48 year old welder who worked at Merivic, a company specializing in grain-related processing. Gutierrez came to the United States at age 14, but in his 34 years in the country never learned to speak or write English. While at work, Gutierrez fell about 10 feet onto a steel table, injuring his shoulder and wrist. He underwent two surgeries, worked for a while as a one-armed welder, and then was let go. His post-injury functioning was significantly limited, including difficulty lifting and carrying, gripping and grasping, and reaching.
When the workers comp commission found him permanently and totally disabled, the employer appealed and the case reached the Iowa Court of Appeals, where the finding of compensability was upheld. Up until 2007, Iowa courts routinely lowered the indemnity paid to limited English speaking workers, on the theory that a language disability was something within the power of the worker to correct. A case entitled Lovic v. Construction put an end to that practice. The reasoning in this decision is worth quoting:

Unfortunately, this line of cases [involving reduced indemnity]
overlooked the fact that the employers who hired these workers should
have reasonably anticipated that an injury which limits an ability to return
to manual labor work would have far more devastating consequences
upon non-English speaking workers than English speaking workers.
Oftentimes, this agency has penalized non-English speaking workers
despite the knowledge that the employers actually recruited such workers
because they were willing to work for less wages.

In other words, you get what you pay for: limited English speaking workers are willing to work for less, so the employer benefits from this potential “disability.” The ruling goes on to attack the rationale for the reduced wages:

What has been troublesome to many, including myself, is that this
agency has never similarly treated non-immigrant workers for failing to
learn other skills. Defendants would certainly have trouble citing any
agency or court precedent in the workers’ compensation arena where an
industrial award for an English speaking worker was lowered because the
injured worker, before the injury, failed to anticipate he would suffer a
devastating work injury and failed to obtain a type of education before the
injury that would mitigate the effects of such an injury.
We simply cannot assume that claimant was capable of such training or that such classes are generally successful in leading to employment where fluent English is required . . . .

By reiterating the logic of the pre-Lovic court, Merivic was attacking settled – albeit recently settled – law. The Appeals Court rejected this “collateral attack” on Lovic and upheld the permanent total award, and in doing stumbled upon yet another conundrum: that of the older worker. The court found that once a laborer goes beyond age 47, his ability to perform physically demanding work comes into question. A vocational expert retained by Gutierrez described the 48 year old worker as “approaching advanced age.” The Judge noted that “We have previously held the age of forty-seven is a factor that the commissioner may consider in finding industrial disability.” The expert also noted that Gutierrez’s entire career involved “limited education” and a work history limited to physically demanding jobs, which his permanent work restrictions now prevented him from performing.The Very Big Picture
Our Colleague Peter Rousmaniere provides a valuable perspective on aging manual workers. In his Risk & Insurance article “The Age Trap” he points out that 55+ workers comprised 16.7 percent of the workforce in 2010, a number projected to increase to 22.7 percent by 2020. In contrast to Enrique Gutierrez, most aging workers are not injured and eligible for workers comp; to be sure, their bodies are wearing down and they are confronted with diminishing strength and balance, even as they desperately try to hold onto their places in the workforce. Rousmaniere suggests that employers develop a renewed focus on prevention, one that has been adapted to the realities of the aging worker. After all, these workers are valued for the skill and experience they bring to the work, even as their work capacities diminish.
The Big picture here – and it is a very big picture indeed – is the dilemma of aging workers who perform physically demanding jobs and who have little education and virtually no transferable skills. There are millions of such workers, some are immigrants, while many others are native born. Most have zero prospects for a secure retirement, even as Congress contemplates pushing social security retirement even further into the future.
Whether they like their jobs or not, aging workers see themselves working out of necessity well into the their 60s, 70s and even 80s. As their bodies inevitably wear out, as their injuries (cumulative and sudden) lead a number of them into workers comp courts across the country, judges will be confronted with the same dilemma that faced the appeals court in Iowa: for older workers with no transferable skills, workers comp becomes the retirement plan of choice for those with no retirement plans and no way to continue working.

The GAO has issued an interesting report on the implications for increasing the retirement age. As the American workforce ages (the Insider is all over that one), and as the pressures on retirement funding increase, the various payers are all looking for ways to shift the costs to someone else. Who are the payers? Social Security, SSDI, the states, private insurers and self-insured employers. As the feds tinker with the retirement age, they are very much in the solve one problem, create another mode.
At first glance, it seems pretty simple: to reduce pressure on the social security retirement system, make people work longer. But it’s one thing for a white-collar bureaucrat (or consultant!) to work into his or her late 60s, it’s something else altogether for modestly educated workers with physically demanding jobs. As the feds slam the door on social security, the door on SSDI flies open. The GAO notes that about 2/3 of those who work report having a job that is physically demanding. In addition, disability rates increase with age, with the result that workers who postpone retirement face the increasing likelihood of becoming disabled. Thus the ever-aging workforce, unable to perform the physically demanding work, may be forced to apply for disability retirement – which, after all, pays better than ordinary social security.The State of the States
This federal-level debate is taking place parallel to what is happening at the state level, where workers comp systems designed to accommodate retirement at 65 or sooner are confronted with older and older workers. How should workers comp estimate the working life of an older worker? To the degree that state systems curtail benefits of these aging workers, the pressure will build on the federal social security and SSDI systems.
One thing is certain: every payer sits in an isolated silo, doing their best to make someone else cut the checks. Every successful shift in cost creates pressure somewhere else. And at the center of this developing storm sit the aging workers themselves: not necessarily wanting to work, not necessarily wanting to qualify for disability, but suffering the slings and arrows of time, with nothing much saved for retirement and an increasingly ominous future close at hand.